How to hire a Real Estate Attorney in Brazil
Hiring an attorney in Brazil is no different from anywhere in the world. Start by asking your friends and relatives for referrals, do some internet shopping, participate in online Forums, you can also get referrals from local BAR offices, Chambers of Commerce, and Embassies or Consulates. Here are some relevant tips to do the initial screening to whittle down you list to two or three prospective candidates:
• Look at the biographies and web sites for the lawyers. Do they appear to have expertise in the area of Law that you need?
• Search the Internet under the name of the lawyer and his or her law firm. Can you find any articles, FAQ's or other informational pieces that the lawyer has done that that give you a level of comfort?
• Ask other people if they have heard of the lawyers and what they think about them.
• Look to see if a lawyer is affiliated with associations that cater to your legal issues. For example, most bar associations have sections in real estate law and other related categories. Having a lawyer who is involved in a chamber of commerce or other local organizations may also be a good sign, depending on your legal needs.
• Before you hire a lawyer, always ask for references. You would want to talk to people who could comment on the lawyer's skills and trustworthiness. Ask if it is okay to talk to some of the lawyer's representative clients. A residential real estate lawyer, for example, should be able to give you the names of a few real estate agents.
The second step is to get more detailed information on each one. In Brazil, every single attorney admitted to practice Law in Brazil must be licensed, affiliated, and registered by and with the local "Ordem dos Advogados do Brasil", known as the OAB, which is the Brazilian version of the American BAR. More information regarding the OAB can be obtained at: www.oab.org.br
Having said that, you should make sure the attorney is licensed and is in good status, meaning, his license is neither suspended nor revoked. Some office branches, such as the Rio de Janeiro branch has a website where you can run a search based on name or license number (http://www.oab-rj.com.br/lista_inscritos.asp).
Once the inscription and good status are confirmed by the local OAB, the third step is to request a BIO or a resume of qualifications and a reference list, so you can attest the attorney's past experience and education, as well as consult with his or hers past clients.
Furthermore, when comes to assisting foreigners, is fundamental that attorney speaks the client's language fluently, otherwise there will always be a communication barrier between the professional and the client, which cannot take place in such important relationship.
Also, education and experience abroad is very important. Attorney must be able to explain the differences between the legal systems by using the technical terms used in the other country, so his clients can have a better understanding.
It is prudent to ask your future lawyer questions such:
• Are you specialized in this area of Law?
• Have you handled matters like this one before?
• Approximately how many matters like this have you handled previously?
• Do you provide a written contract in my language? If so, ask to see an example.
• Can you call and expect a reasonably prompt response?
• How can I contact in case of an emergency? Can I have your cell phone or pager?
When it comes to hiring real estate attorneys, besides the above listed steps, more careful and due diligence is required. But why would you need a real estate agent and/or a real estate attorney if is not required by Law in the first place? Real estate transactions usually involve considerable amounts of money and involve a number of legal procedures and tons of paperwork that must be properly executed to be valid.
In my opinion the importance of a real estate attorney when purchasing real estate is fundamental because a foreign buyer is usually not fully aware of the laws that affect the ownership. Sometimes, you're not only subject to the laws of real estate ownership, but there may be special laws or restrictions which affect foreign owners, as well as local laws which may be different from jurisdiction to jurisdiction.
Plus, there is always the risk of related title defects. These defects could include survey errors, title flaws, fraud, forgery, undisclosed liens and encumbrances, or a host of other problems. Attorneys identify these risks and disclose to clients, but the client must decide whether or not to accept the risks. If a title search is not done or not properly done, buyer could face substantial losses or damages.
In Brazil is common to hear realtors telling their clients not to hire an attorney or to let them do the paperwork for them. For obvious reasons they don't want to risk losing a deal by any means; needless to say if an attorney detects a hidden title cloud or a lawsuit or any other deal-breaker issue while running a thorough title and seller search. As a matter of fact, the advice not to seek legal help is prohibited in the State of Florida for example. Realtors there can be reprimanded and loose their license in some cases.
Nonetheless, in Brazil the reality is different, some sellers and some realtors do steer buyers away from real estate attorneys, but if this happens to you, extra careful is required. If there is a hidden title defect or a pending lawsuit against the seller, and you end up losing your recently bought property, guess what is going to happen? You won't be able to get your money back based on the verbal guarantee given by the seller or by the realtor on a title or legal issue. It is not part of their job to give legal advice and issue opinions on title and court documents. It is the same thing as if your accountant gave you medical advice which caused you to loose your liver. You ultimately followed the advice of a non-expert, someone who lacks in education, knowledge and in experience; someone who does not hold the respective license to do the job; and therefore, someone who has no obligation to give you proper and correct advice whatsoever.
Once I had a client who contacted me to review some title documents provided by his realtor and I noticed that the house, the edification, had not been registered in the Real Estate Registry. Later on, I found out that the some of the construction workers were suing the seller and trying to place a mechanical lien in the house due to lack of payment. Not only that, but the governmental fees were not paid by seller and one of the workers had suffered an accident during construction. Consequently, the seller had not been able to get the proper documentation to register the house and will never be able to do so, until these matters are completely resolved. My client was promptly advised of that and we were able to get their deposit money back after a few threatening letters.
Not only the property's search is necessary but also, seller's searches are a must in Brazil. Once I had a client who was purchasing a mountain house that was registered to a corporation. Seller and realtor provided buyer with the documentation from the jurisdiction where the house was located, all seemed fine, but when I requested the seller's documentation from the jurisdiction where his corporation does its regular business, for my client's surprise, such corporation had many lawsuits and was in the brink of bankruptcy. My client was then notified and after filing a lawsuit, the seller returned the deposit money to the buyer.
These are a few of many stories of buyers who in the last minute were able to resolve such issues by having an attorney looking over some documents, thus avoiding suffer big losses or damages, that is the importance of knowing how to hire a good attorney when it comes to real estate purchases.
Therefore, always make sure your attorney does a complete search not only on the property's title, but also on the current owners.
Remember, when you are being sued, is too late. The time to look for representation and link with a good real estate lawyer is before you sign a contract or pay a deposit. Once you have been served with a summons and complaint, it's too late, the problem has already occurred, and it's just a question of how much you will have to pay (in court costs, attorneys' fees, settlements and other expenses) to get the problem resolved.
I hope to have been able to shed some light on how to hire an attorney and in the importance of having one.
PUBLICATIONS
Acquiring Real Estate in Brazil
Acquiring a Tax ID (CPF) Number in Brazil
The Closing Process in Brazil
Divorce (Dissolution in Florida)
How to get divorced in Brazil
How to hire an Attorney in Brazil
The importance of Title Search
International Money Transfers to Brazil
New Real Estate Rental Law
Non-Resident Bank Accounts
Careful when buying Pre-Construction
Restrictions when buying rural Properties
Returning Money from a Real Estate Deal
Squater Rights (Usucapiao) - Be Aware!
State Tax on foreign money transfers
